Federal Court. Can it be said that, "once the Minister or a delegate is satisfied that all of the criteria for the grant of a visa are met, she or he is under an immediate duty to grant the visa" and that "once the duty to grant the visa has arisen, any subsequent exercise of the power to refuse the visa under s 501 is invalid"? Is PIC 4001 invalid? Is a decision under s 501 ultimately made under s 65?
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Is the reference to the character test in PIC 4001 intended to bear the same meaning as in s 501(6) of the Migration Act 1958 (Cth)?
Question 2: Can it be said that, as a matter of statutory construction of s 65 of the Migration Act 1958 (Cth), "once the Minister or a delegate is satisfied that all of the criteria for the grant of a visa are met, she or he is under an immediate duty to grant the visa" and that "once the duty to grant the visa has arisen, any subsequent exercise of the power to refuse the visa under s 501 is invalid"?
Question 3: Did the High Court in Farah endorse the proposition that there could be lower court departure where the two limbs of the test ("long-established authority and seriously considered dicta of a majority of [the High] Court") were not met?
Question 4: Were the findings of Edelman J in KDSP about the validity of PIC 4001 obiter dicta?
Question 5: Is PIC 4001 invalid?
Question 6: Is a decision under s 501 ultimately made under s 65 of the Migration Act 1958 (Cth)?
Question 7: Is the administrative practice of designating assessments of individual criteria as merely indicative unlawful?
Question 8: In making a decision under s 501 to refuse to grant the Applicant a visa, the Minister said as follows in his reasons: "However, I do not consider the prospects of ministerial intervention under s195A or 197AB of the Act to be unrealistic in relation to [Mr EPU] simply because his visa has been refused on character grounds and I have decided to refuse the visa application. Any consideration by myself or another Minister administering the Act for the purposes of s195A or 197AB will be based on the circumstances existing at the time of the decision" (underlining added). However, there was evidence before the FCA "to demonstrate that the power in s 195A of the Act had been exercised to grant a visa to a person who had failed the character test and is owed non-refoulement obligations on only a handful of occasions" from 1 July 2015 to 30 April 2021. Can it be said that, for the purpose of determining whether that is illogical or irrational, "observations in other cases as to the probabilities that an applicant who fails the character test might be granted some other visa are irrelevant"?
Question 9: Is it "possible, in a particular case, that a decision-maker might rationally and logically find that possible future changes in an applicant’s circumstances may lead to a different assessment of risk and on that basis find that there is a realistic possibility that the non-citizen might be granted a visa or made subject to a residence determination in the exercise of ministerial intervention under these personal, non-compellable powers"?
Question 10: Is it possible that "in some cases, a decision-maker could reach the same conclusion by reference to the realistic possibility that extrinsic circumstances may change"?
Question 11: At , the Minister found as follows: "I find that the violence involved in [the Applicant's] offending could have serious consequences for the community if he were to reoffend and that great harm to the community could result if he were to engage in similar behaviour and I find that any level of risk is unacceptable". If the answer to Questions 9 and 10 is 'yes', can it be said that the possibilities alluded to in those 2 questions did not apply here, because of "the Minister’s finding at  that “any level of risk is unacceptable” (emphasis added) in the section of his reasons appearing under the subheading “Conclusion on risk to community”"?
Question 12: Can it be said that "FYBR stands for the proposition that community expectations in Direction 65 (which is a predecessor to Direction 90)are to be understood as setting norms, being a statement by the government of what it considers or deems community expectations to be, and that for a decision-maker to make a personal assessment of community expectations by reference to the particular circumstances of the case would be inimical to the decision-making process set out in Direction 65"?
Question 13: Can it be said that "the fact that Direction 90 does not bind the Minister and the Minister therefore could theoretically depart from the Direction does not mean that the Minister must therefore engage in a wider inquiry and assess whether or not the community would have expected a person in [the Applicant's] circumstances to be granted the visa"?
Question 14: Might a question question "arise as to whether, as a matter of construction, the community expectations set out in Direction 90 and its earlier iterations were intended to set out community expectations with respect to juvenile offenders, that is, whether those deemed expectations had any application to persons who have committed offences while juveniles"?
Question 15: Can it be said that "the absence of evidence contradicting the proposition for which the applicant contends [i.e. that the Minister engaged in a de facto delegation of his personal powers], cannot be converted into circumstantial evidence tending to prove it against the Minister, as the silent party on the issue"?
The FCA answered those questions as follows:
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